Eugene Volokh's Blog, page 237

[Josh Blackman] Today in Supreme Court History: October 30, 1735

10/30/1735: President John Adams's birthday.

President John Adams

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[Jonathan H. Adler] Supreme Court Refuses to Remove RFK Jr. from Wisconsin and Michigan Ballots

In two unsigned orders, the Supreme Court has denied Robert F. Kennedy Jr's applications for injunctions that would have removed his name from the ballots in Wisconsin and Michigan. RFK Jr had been running for President as an independent, and qualified to be on many ballots around the country. He subsequently dropped out of the race, however, and endorsed Donald Trump. Now he would like to be removed from the ballot in swing states where he fears he would draw votes away from Trump, but his efforts to get off of the ballot in Wisconsin and Michigan were unsuccessful.

No justice dissented from the Wisconsin order. Justice Gorsuch, however, dissented from the Michigan order. His dissent reads:

Respectfully, I dissent for substantially the reasons given by Judges Thapar, Readler, and McKeague. See Kennedy v. Benson, case No. 24-1799, (CA6, Oct. 16, 2024), pp. 13—19 (Thapar, J., dissenting from denial of rehearing en banc); id., at 20—32 (Readler, J., dissenting from denial of rehearing en banc); id., at 35—37 (McKeague, J., statement respecting denial of rehearing and denial of rehearing en banc).

His references are to the McKeague dissent in this unpublished panel opinion and the Thapar and Readler dissents from the denial of rehearing en banc.

On Sunday, Trump reportedly said he would let RFK Jr. "go wild" on food and public health issues were he to be re-elected. From one report:

"I'm going to let him go wild on health. I'm going to let him go wild on the food. I'm going to let him go wild on the medicines," Trump told supporters at Madison Square Garden.

"The only thing I don't think I'm going to let him even get near is the liquid gold that we have under our feet," he added, referring to oil.

Given some of RFK Jr's borderline-insane views on a range of public health issues, that would be quite the choice. Back in 2008, there were reports that RFK Jr could be considered as EPA Administrator in the Obama Administration, but was "too controversial."

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[Eugene Volokh] Journal of Free Speech Law: "The Free Speech Clause as a Deregulatory Tool," by Alexander Tsesis

The article is here; the Introduction:

The language of the Free Speech Clause is not self-definitional. Almost all human activities involve communications; even criminality can be infused with expressiveness, but that does not mean that conspiracy, assault, and hate crimes are protected by the First Amendment. The Supreme Court of the United States is tasked with explaining the scope of its coverage. In recent years, the Court has taken a decidedly libertarian approach to laws that impose even nominal restrictions on communications.

That approach has proven strategically beneficial to special interests who challenge laws meant to secure labor rights, to restrict corporate expenditures on political campaigns, to prevent protestors from standing too close to the entrances of clinics where abortions are performed, and to compel the posting of health notices. The Court's reasoning has become increasingly formalist, adopting judicial categories of interpretation to strike legislation without giving adequate consideration to countervailing government interests.

The Supreme Court's free speech jurisprudence has relied increasingly on a categorical understanding of free speech that purports to have historical pedigree. Close examination, however, reveals absolutist statements and historical inaccuracies. A series of recent cases have strictly construed the Free Speech Clause to strike various regulations. The predominant framework of analysis strengthens the Court's hand at the expense of legislative initiative. As the power of the judiciary has waxed, the ability of legislators to pass laws responsive to constituents' demands has waned. The Court's rigid free speech doctrine creates a model of governance that is "incapable of responding to new conditions and challenges."

Judicial formalism lacks transparency, which is essential to litigation and appeal. This essay argues for greater judicial clarity in balancing competing interests and in evaluating surrounding circumstances. It proposes an analytical approach for courts to undertake when assessing First Amendment challenges to traditional government functions. Rather than dismissing lawmakers' concerns, the Court should evaluate whether a law interferes with self-expression, civic participation, or factual assessment. A balance is needed for courts to reflect on speech concerns, how well the law fits with regulatory aims, and alternatives for communication.

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[Ilya Somin] Elon Musk's Story Highlights Harm Caused by Immigration Restrictions

Elon Musk. (BRENDAN SMIALOWSKI / GDA Photo Service/Newsco)

 

A recent Washington Post article shows Elon Musk was, for a time, working illegally in the US, and  subject to deportation. He was able to remain in the US and eventually legalize his status because law enforcement was either unaware of his status or chose to look the other way. Much of the commentary on this issue focuses on Musk's hypocrisy: he has since become an advocate of hardline policies on illegal migration, under which people like Musk himself would be deported.

But Musk's story also highlights the harm caused by immigration restrictions. Cato Institute immigration policy expert Alex Nowrasteh explains:

What bothers me in the WaPo article is how destructive the US immigration system is. It almost didn't allow Elon Musk to settle here and build several innovative firms, push technological breakthroughs, and build enormous consumer surplus and shareholder value. Musk is a 1 in a billion innovator and businessman. If the US immigration system blocked at least one other Musk-type entrepreneur from coming here in the last century, then this should make intelligent nativists rethink their position. Few of them would want to kick Musk out now, but they support rules and enforcement that could stop the next Musk from coming or staying here. Musk was bright before he got a work visa, but there was little indication that he'd become the wealthiest man in the world. The conceit of immigration central planners almost cost us Musk's talents. Let's stop ignoring the right tail of the distribution and error on the side of letting more people in – one of them could take us to Neptune. I hope that readers of this story will come away with the same lesson instead of focusing on the hypocrisy.

Had Musk been forced to return to South Africa, he probably would never have had the opportunity to make major innovations and found Tesla and SpaceX.

Immigrants contribute disproportionately to a wide variety of entrepreneurial and scientific innovations. As discussed more fully in my article "Immigration and the Economic Freedom of Natives," that means large-scale immigration restrictions inevitably keep out significant numbers of people who might otherwise become major innovators or make important scientific breakthroughs. The immigrant we keep out today might have gone on to make a scientific discovery that could have saved your life, or that of one of your loved ones.

Obviously, a small fraction of would-be immigrants will become major innovators. But that small fraction is extremely important. And the cumulative impact of keeping out large numbers of ordinary migrants is that we also lose massive economic and scientific contributions by major innovators.

I am a bit less bullish about Musk's impact, in particular, than Alex Nowrasteh is. The benefits of his great innovations are partly offset by his harmful impact on political discourse, such as promoting bogus conspiracy theories about immigration ("great replacement theory") and voter fraud. On balance, however, the benefits of Musk's presence in the US almost certainly outweigh the costs. The real problem with political misinformation is a matter of demand more than supply. So long as there is a large demand for conspiracy-mongering claptrap, political entrepreneurs are likely to supply it. The particular claptrap that Musk promotes wasn't invented by him, and had widespread dissemination (including by Donald Trump) before Musk became involved. By contrast, Musk's entrepreneurial innovations are far less likely to have been quickly achieved by others, if he weren't around. And Twitter was a cesspool of awful political discourse long before Musk bought it. At most, he made it marginally worse.

There's a chance Musk might ultimately have a massively deleterious political impact. But more likely, he has just somewhat amplified terrible ideas that were already getting widespread dissemination. In addition, I would be wary of empowering government keep out migrants on the theory that they might spread harmful political ideas. If we don't trust government to censor supposedly harmful ideas disseminated by natives, the same reasoning also undermines the case for ideological screening of immigrants. Elsewhere, I have addressed in more detail the issues raised by the possibility that an extraordinary individual migrant could cause great harm as a political leader or a producer of harmful technological innovations.

In sum, the real lesson of Musk's story as an illegal migrant worker is that immigration restrictions often block tremendously valuable innovation. Musk was lucky enough to get around the system. All too many other potentially great innovators aren't as fortunate.

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[David Post] Two Sentences I Never Thought I'd Write

The first sentence: "I hope the Yankees win the World Series."

I was born in 1951 in Brooklyn, and grew up there, leaving for college in 1968.  I was a very passionate Dodgers fan, as was pretty much everyone else I knew. Several Dodger players lived in our neighborhood, including the great Gil Hodges, after whom my elementary school, formerly PS 193, is now named. The Dodgers in the '50s were easy to love: Hodges, Jackie Robinson, Roy Campanella, PeeWee Reese, Duke Snider . . .  a fabulous squad that made the World Series four times in the 50's ('52, '53, '55, and '56), winning their first and only title, gloriously, in the thrilling 7-game 1955 Series versus the Yankees.

I was devastated when the Dodgers abandoned Brooklyn after the 1957 season. Though I was only six years old, I remember it vividly; it was the first time in my life that I understood that the world could be a cruel, cruel place. I swore never to forgive them for the betrayal, and I never have.

There's the famous story of Jimmy Breslin and Pete Hamill, two hard-boiled New York City news reporters hailing from Queens and Brooklyn, respectively, having drinks at a bar when they consider the question: who were the three most evil people in human history?  Each writes down his choice on a napkin out of sight of the other, and when they look at the two napkins they're in total agreement: Hitler, Stalin, and Walter O'Malley, the Dodgers' owner who took the Dodgers out to the West Coast.  Exactly how I felt.

Loving the Dodgers in the '50s meant hating, with all your heart, the Yankees. The Yankees were the implacable foe, having beaten the Dodgers in the World Series in six of their seven meetings ('41, '47, '49, '52,'53, and '56). While the Dodgers were building their formidable squad in the late '40s/early '50s, the Yankees were, alas, a step (or two or three) ahead of them, far and away the best team on the planet; between 1949 and 1961 they won eight World Series titles, with a awe-inspiring lineup—Mantle, Berra, Moose Skowron, Whitey Ford, Roger Maris, Tony Kubek, etc. etc.—all of whom I detested with every bone in my young body. The idea of switching allegiance to them—they were, after all, the only team left in NYC after the Giants followed the Dodgers out west in 1958—was absurd, and I can't remember a single person from my childhood who did so.

In 1941, the Germans invaded Russia.  So, given the choice between Hitler and Stalin, who do you root for?  We chose Stalin—clearly, at the time, the lesser of two evils.  So I'm going for the Yankees; their crime—being spectacularly good for an amazingly long period of time—does not reach the depths of the Dodgers' immorality.

Predictably enough, given that the baseball gods have rarely been kind to me, the one time I'm rooting for them, they stink, having apparently forgotten how to hit.

The second sentence (in a more serious vein): "Tens of millions of my fellow-citizens —perhaps even a majority—appear to be poised to elect, as President, a man who tried to overthrow the constitutionally-elected government of the United States."

I cannot wrap my mind around it. As anyone who has read my postings in the past is well aware, I'm no fan of Donald Trump. For any number of reasons—the compulsive lying, the hate-infused rants, the fact that he was the first President since Herbert Hoover to have left office with a net job loss during his four years as President, the shameful kissing-up to Putin and Kim Jong Un, his tariff policy, the threats to pull out of NATO, . . .—I think he was a terrible President during his first term and would almost certainly be a terrible President the second time around.

But put all of that aside.  I get it—people have divergent views about all of those things. That's just politics.

But I would have thought that the vast majority of Americans would view attempting to overthrow the government through unconstitutional means as a total disqualification for holding the highest office in the land, and would not countenance casting their vote for anyone who participated in such an attempt.

Do the folks pulling Trump's lever not believe that he was a willing and active participant in the overthrow scheme, involving, as it did, the Jan. 6 attack on the Capitol, the pressure on Vice-President Pence to single-handedly overturn the election results, the "fake elector" schemes, the threatening phone calls to State election officials? Or do they view all that as not being of sufficient moment to disqualify someone from getting their vote for President—perhaps formally, via Section 3 of the 14th Amendment, or just as a matter of common sense and a sense of duty to their fellow-citizens?

Like I said, I don't understand it. I'm hopeful that one of my readers can explain to me which of those possibilities is closer to the truth of the matter, and why, in either case, we shouldn't be terrified about that.

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[Eugene Volokh] Texas Public University Restrictions on Anti-Israel Speech Likely Violate First Amendment

From today's decision by Judge Robert Pitman (W.D. Tex.) in Students for Justice in Palestine v. Abbott:

GA-44 begins with a preamble detailing events of the Israel-Palestine conflict and related protests that had recently occurred on university campuses. The preamble includes the provision:

WHEREAS, multiple protests and walkouts have been staged by universities' student organizations, with students chanting antisemitic phrases such as "from the river to the sea, Palestine will be free," which has long been used by Hamas supporters to call for the violent dismantling of the State of Israel and the destruction of the Jewish people who live there;

Then, GA-44 directs all Texas higher education institutions to do the following:

Review and update free speech policies to address the sharp rise in antisemitic speech and acts on university campuses and establish appropriate punishments, including expulsion from the institution. Ensure that these policies are being enforced on campuses and that groups such as the Palestine Solidarity Committee and Students for Justice in Palestine are disciplined for violating these policies. Include the definition of antisemitism, adopted by the State of Texas in Section 448.001 of the Texas Government Code, in university free speech policies to guide university personnel and students on what constitutes antisemitic speech.

That definition of antisemitism in Section 448.001 of the Texas Government Code is:

"Antisemitism" means a certain perception of Jews that may be expressed as hatred toward Jews. The term includes rhetorical and physical acts of antisemitism directed toward Jewish or non-Jewish individuals or their property or toward Jewish community institutions and religious facilities. Examples of antisemitism are included with the International Holocaust Remembrance Alliance's "Working Definition of Antisemitism" adopted on May 26, 2016.

Two of the "examples of antisemitism" included in the International Holocaust Remembrance Alliance's "Working Definition of Antisemitism," relevant here, are:

Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Isr[ae]l is a racist endeavor; Drawing comparisons of contemporary Israeli policy to that of the Nazis.

Various Texas public universities (including UT branches at the University of Houston) did indeed adapt their speech codes in light of that.

The court assumes without deciding that Tinker v. Des Moines Indep. School Dist. (1969) applies to public universities, so that student speech could be restricted if it's substantially disruptive (even if it is disruptive based on its content). But it concludes that the policy is unconstitutional even under Tinker, as applied to public universities:

[A]s a threshold issue, the Court finds the incorporation of this specific definition of antisemitism is viewpoint discrimination. In general, including the word "antisemitism" in speech policies, perhaps in the context of protecting students from discrimination and harassment, is not inherently a First Amendment violation. The Defendants wish to view the speech policies in this vacuum, claiming the revised policies do not in fact prohibit any specific expression. But here, the speech policies do not leave "antisemitism" open to constitutional definitions and interpretations, because GA-44 mandated a specific definition. That definition, by incorporation of the IHRA's examples, labels "calling the State of Israel a racist endeavor" and "drawing comparisons of contemporary Israeli policy to that of the Nazis" as antisemitic. And students can be punished for antisemitic speech under the revised speech policies. Plaintiffs follow this thread, reasonably understand that their intended speech is now punishable under the revised policies, and hesitate to engage in such expression. Because of this, [the] Court finds the revised policies are intertwined with GA-44 and the IHRA examples, which identify content-specific expression—like that the State of Israel is a racist endeavor or drawing comparisons between Israel and Nazis. Through the connection to these examples, the policies make that speech punishable, thereby chilling it.

Now, Tinker's framework does permit schools to prohibit certain expression of certain viewpoints, but only upon a showing that the expression would cause a "substantial disruption" of school actives. The school official "must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." Additionally, Healy v. James (1972), a First Amendment case at the university level, directs First Amendment analysis to be done "'in light of the special characteristics of the environment' in the particular case." The Supreme Court in Healy found the need for this circumstance-specific inquiry was "made clear in Tinker."

So, assessing what might be a "substantial disruption" in a university setting requires consideration of the "special characteristics of the environment." In other words, because of the characteristics of each environment, what may be a substantial disruption in a secondary school environment may not be a substantial disruption in a university environment; what may disrupt a secondary school could even be fundamental to universities. The Supreme Court has long recognized that universities are "vital centers for the Nation's intellectual life," to the extent that "danger … from the chilling of individual thought and expression" "is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition." Ultimately, "the precedents of [the Supreme Court] leave no room for the view that … First Amendment protections should apply with less force on college campuses than in the community at large." Healy.

Here, the characteristic of universities as an environment for vigorous debate is outcome determinative. The revised university policies chill a kind of expression that is a hallmark of university activity, and even under Tinker, the Court finds the Defendants cannot show this expression sufficiently rises to the level of a "substantial disruption" at the university level. To the contrary, this type of passionate political debate is essential at universities, where students are forming their worldview as adults. Restrictions on speech at the secondary-school level are justified in part by schools acting in loco parentis to children, but universities do not serve that same function, and even perform a disservice to their mature students by prohibiting expression that some may find disagreeable.

Defendants emphasize the spring protests, arguing those events are evidence that this speech is a substantial disruption. But the Court disagrees, finding the prohibition of this expression more akin to "a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." For example, a student could calmly express she finds Israel's policies similar to that of the Nazis while seated in a classroom with her hands folded in her lap, and it could hardly be said this expression is a per se substantial disruption. Yet under UT Austin's revised policy, for example, her expression is defined as antisemitism and could be punished as "harassment … committed because of antisemitism." And while some may find her speech disagreeable, offensive, or even inflammatory, it is "bedrock principle underlying the First Amendment … that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

If this viewpoint is expressed in a way that truly does rise to the level of a substantial disruption, the disruption can be addressed through content-neutral, time, manner, and place restrictions, such as those the Defendants vigorously argue they applied during the spring protests, making the prohibition on this specific expression not only unconstitutional but unnecessary. As the Supreme Court said in Healy, "[t]he college classroom with its surrounding environs is peculiarly the 'marketplace of ideas,' and we break no new constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom."

In conclusion, the Court finds that Plaintiffs are likely to succeed on their claim, even under Tinker, that the GA-44-compliant university policies impose impermissible viewpoint discrimination that chills speech in violation of the First Amendment.

I think that's generally right. I would disagree on a few points along the way: For instance, I don't think that the principle that "Tinker's framework does permit schools to prohibit certain expression of certain viewpoints" is at all applicable (given Healy) to universities: As the court later notes, Healy makes clear that "the precedents of [the Supreme Court] leave no room for the view that … First Amendment protections should apply with less force on college campuses than in the community at large"; any disruption must be addressed (as Healy points out) through "reasonable regulations with respect to the time, the place, and the manner in which student groups conduct their speech-related activities," which refers to content-neutral and viewpoint-neutral restrictions.

I'd also say that any restriction on anti-Semitic speech, whether it uses the IHRA definition or just targets hostility to Jews as such, is viewpoint-based. Universities aren't allowed to restrict anti-Semitic viewpoints any more than anti-Israel viewpoints. But on balance, I think the court is correct in concluding that the Texas policies violate the First Amendment.

The court, though, declines to issue the preliminary injunction that the plaintiffs sought:

Plaintiffs' proposed order asks the Court to enjoin Defendants from:

enforcing GA-44 and any practices or policies adopted in furtherance of it, including but not limited to the creation of any rules or policies that:

forbid students from using the phrase from the river to the sea, Palestine will be free; define as bigoted the typical criticisms and historical comparisons students make about foreign countries when those criticisms are made about Israel; single out for punishment Students for Justice in Palestine, Palestine Solidarity Committee, or any organization that is critical of Israel and supports the rights of Palestinians;

and to order that:

Defendant Taylor Eighmy is hereby preliminarily enjoined from enforcing the school's policy forbidding students from chanting or displaying on signs the slogan from the river to the sea, Palestine will be free.

Defendant Rene Khator is hereby preliminary enjoined from enforcing its new policies that seek to comport with GA-44, including the changes made to UH Systems' free expression policies by the Board of Regents on May 17th.

… Overall, the Court finds Plaintiffs' requested injunction overbroad. The Court acknowledges that if Plaintiffs ultimately succeed, the Court will need to grant relief. Appropriate relief will focus on eliminating the connection between the university policies, GA-44's definition of antisemitism, and the IHRA's examples of antisemitism, because it is that connection that chills Plaintiffs' speech. For example, particularly if evidence arises that the policies are being enforced in alignment with the IHRA's examples, appropriate relief may enjoin Defendants from punishing speech under the guidance of the IHRA's examples. The proposed injunction is not narrowly tailored to the specific definition and examples of antisemitism incorporated into the policies. For instance, UH's revised policy does not identify, even by reference, the phrase "from the river to the sea." And, Plaintiffs could violate valid university policies in a manner that requires them to be "single[d] out for punishment." Because a preliminary injunction should be the exception rather than the rule, and the decision is discretionary, the Court  declines to exercise its discretion to fashion its own injunction at this time and does not wish to err by entering the proposed overbroad injunction.

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[Josh Blackman] Today in Supreme Court History: October 29, 1942

10/29/1942: Published decision in Ex Parte Quirin released. At that point, six of the saboteurs had already been electrocuted.

The Stone Court (1941-1942)

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[Eugene Volokh] Journal of Free Speech Law: "The First Amendment Meets the Virtual Public Square," by Allison Stanger

The article is here; the Introduction:

On January 6, 2021, with the encouragement of President Donald Trump, a motley crew of "Stop the Steal" zealots stormed the U.S. Capitol, destroying lives and property. In response, Twitter, YouTube, and Facebook took the unprecedented step of deplatforming a freely elected U.S. president. Twitter permanently suspended Trump's account, Google's YouTube shut him down indefinitely, and Facebook closed his account but referred its decision to Facebook's newly assembled Global Oversight Board for review. Yet two years later, in January 2023, Twitter's new owner Elon Musk reinstated Trump's Twitter account, and Facebook announced the lifting of Trump's ban, without any public explanation. There was no public outcry.

At the time of Trump's social media silencing, there had been considerable public debate over whether such dramatic action had been warranted. For liberal elites, it had happened far too late. For red-state America, the very idea of censoring a freely elected president was unacceptable. Both sides of this discussion had a point but were asking the wrong questions, and in doing so, lost the plotline of the real story. Things had gone too far so that every choice at the time was a bad choice. Rather than asking if Big Tech should have silenced Donald Trump after January 6, we should instead be asking: how and why did we reach the point at which that Hobson's choice had to be made in the first place? The short answer to that question is that while the world's attention was focused elsewhere, Big Tech came to be the gatekeeper of our virtual public sphere, supplanting media institutions and national social norms, the latter of which no longer exist.

Whereas governance and civic engagement used to emerge from deliberation framed by the marketplace of ideas under the protection of the First Amendment (unless the speech incited violence), online harassment and cancel culture today, fueled by social media and framed by recommender algorithms, undermine reason-based public deliberation. For many younger people, freedom of speech has become the rallying cry of white people in red states. The Republican Party's attack on what it calls "wokeness" and its repeated calls for defending free speech feeds that perception.

While those on the extreme left and extreme right argue about their respective trampled free speech rights, they both overlook that the First Amendment protects citizens from government encroachment on freedom of speech and assembly; the First Amendment is mute on corporate suppression of free expression. If we want each and every voter to have an equal voice in public deliberation, the Constitution alone will no longer get us there.

Writing in 1968, J. C. R. Licklider, the founder of the Advanced Research Projects Agency Network, the forerunner to today's world wide web, foresaw this potential negative impact of technological change on society. "For the society, the impact will be good or bad," he predicted, "depending mainly on the question: Will 'to be on line' [sic] be a privilege or a right?" Licklider envisioned the networked world of Web 2.0, but he could not foresee that it would develop without direct government involvement. He did not foresee the ad-driven business model and its ramifications for the free marketplace of ideas.

Unfortunately, the laissez-faire approach to social media that Congress has pursued to date has allowed bad consequences to grow deep roots. Slowly, to be online with an unfettered voice is becoming a privilege rather than a right. The Trump administration repealed net neutrality, so the rich can have faster service than those who cannot afford speed. The ad-driven business model has rendered the right to privacy a luxury good, as those of lesser means give up their personal data and uninterrupted programming in exchange for free streaming services with ads and constant surveillance. The privileged pay subscription fees to imbibe their entertainment without unwanted interruptions.

Since cyberspace has become our public square, this is a deeply disturbing development, both for justice by means of democracy and democratic sustainability. This is to say nothing of equal protection before the law, an assumption on which our Constitution depends, at least theoretically. At the time of this writing, there are several cases in the Supreme Court's docket regarding freedom of speech on social media, which means that either the Supreme Court or Congress could take steps to restore public equality before the law in cyberspace or further entrench private power. To understand the challenges presently before the Court, we must first get a better idea of how we arrived at this particular juncture.

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[Eugene Volokh] Court Vacates Order That Apparently Called for Vanishing of My (and Others') Posts About Hyman v. Daoud

From today's Order Vacating in Part and Clarifying Order of Mar. 13, 2024 (responding to a motion filed Friday on my behalf by Marc Randazza and Kylie Werk of the Randazza Legal Group, PLLC):

ORDER VACATING IN PART AND CLARIFYING ORDER OF MARCH 13, 2024

This action came before the Court on NON-PARTY EUGENE VOLOKH'S MOTION [D.E. 48] TO INTERVENE AND FOR RECONSIDERATION OF ORDER.

The Motion is granted. The order docketed March 13, 2024 is hereby vacated to the extent it can be read or interpreted to apply to anyone other than the parties to this action. It is expressly vacated to the extent it purports to order Mr. Volokh to take any action—or to refrain from taking any action. The order shall be interpreted to only apply to Defendant Arnold Daoud, or anyone acting at his direction. The order does not apply to anyone who is not a party to this action; to be clear, this includes any non-party who has or may write about this action or the filings docketed in this action, or both.

The March 13 order had said, among other things,

1. This order requires the taking down or deletion or deindexing the following links on the internet:

 http://conlinpa.com/2016/04/03/hyman-...
 https://www.miamiherald.com/news/loca...
 https://reason.com/volokh/2023/12/14/...
 https://www.cbsnews.com/miami/news/no...
 https://conlinpa.com/2016/04/03/hyman...
[Many more URLs, including several of mine. -EV] …

2. Within ten (10) days of being furnished a copy of this Order, any internet-related services, internet service provider, host provider and/or search engine shall

i. remove and cause to be removed and/or deindexed from the internet the links above; and/or

ii. remove and cause to be removed from any Site (including the web sites themselves and all URLS and links, even if they change) all statements, posts, social media, or videos or documents related to directly or indirectly to this lawsuit, and/or Kelly Hyman, Paul G. Hyman, Jr., Kaylee Hyman and Zachary Hyman and/or any website or posting defamatory, slander, or any statements against Kelly Hyman, Paul G. Hyman, Jr., Kaylee Hyman and Zachary Hyman on the internet, television, radio, print or any other forms of media including, but not limited to the Sites.

[Three other such requirements omitted. -EV]

3. Daoud, directly or indirectly, shall not create any new alias, nor use any old alias, to post, host, or make available any statement regarding Kelly Hyman, Paul G. Hyman, Jr., Kaylee Hyman and Zachary Hyman via the internet, television, radio, print or any other forms of media.

4. This Order does not modify or alter the settlement agreement of the parties or any prior order of this Court, and that the settlement agreement and all prior orders of this Court remain in full force and effect. This order along with any court documents related directly or indirectly to this matter is prohibited from being posted including, but not limited to any website, and/or social media and/or internet. This Court retains jurisdiction to enforce this order.

I learned about the order from this e-mail that I got Oct. 17:

[Subject] Request for Link Removal as per Court Order

Hello,

I am reaching out to request the removal of the following link from your website, as per a court order:

https://reason.com/volokh/2020/11/24/... https://reason.com/volokh/2023/12/14/...

I've attached a copy of the court order for you to look over. Please proceed with removing the links at your earliest convenience.

Thank you for taking the time to look into this matter.

Sincerely,

Angelina

For the reasons given in this morning's post about the motion, I think the order couldn't have applied to me (given Florida law) and would have been unconstitutional if it did apply to me (given the Due Process Clause and the First Amendment). But I wanted to have that made clear. Many thanks to Marc Randazza and Kylie Werk for their representing me pro bono in this case, and for getting such prompt results.

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[Eugene Volokh] More on the Diploma Questions in Adams v. Gulley, the Case Where a Judge Ordered the Removal of Reddit Criticisms of a Public Commentator

The order: As readers may recall, I've written about a recent California court order that restricted online criticism of one Sarrita Adams. Adams runs Science On Trial, Inc., which "provides forensic consultation services across the United States and the United Kingdom." Adams drew public attention by publicly criticizing the evidence in the 2023 English trial of nurse Lucy Letby, who was convicted of murdering seven infants. Her claims were mentioned in, among other publications, The Times (London), the New York Post, and most recently The New Yorker.

Adams' criticism, however, itself drew criticism, including on Reddit's r/scienceontrial ("This community exists to fact check claims about Science on Trial, its creator Sarrita Adams, and various statements that can be credited to her."). The main poster there has been the pseudonymous Reddit user MrJusticeGossipGirl, apparently a reference to Mr. Justice Goss, the judge in the Letby trial. The posts generally criticize Adams' credentials, views on the Letby trial, responses to critics, and more. (There's also a reddit r/sarritaadams, which points the reader to r/scienceontrial.)

But on June 7, San Francisco County Superior Court Maria Evangelista issued a temporary harassment restraining order (Adams v. Gulley, PDF pp. 42-47) ordering defendant Gulley—who appears to be MrJusticeGossipGirl—

Do not make any social media posts about or impersonating plaintiff and her company Science on Trial on any public or social media platform. All harassing posts shall be removed.

This was done based on a restraining order request filed June 6; it appears that Gulley wasn't given an opportunity to appear in court to oppose the order (this is known in this context as an "ex parte" proceeding). The order was extended for over four months, until mid-October, when the court ultimately vacated it on the grounds that the California courts lack jurisdiction over Gulley, a Pennsylvania resident. I argued here that the order also violated the First Amendment and the California restraining order law.

The diploma: But in the litigation over the order, Gulley's lawyers (at the Foundation for Individual Rights and Expression) alleged that the filings on Adams' side included a seemingly inauthentic diploma:

At the time I posted about that (Oct. 18), I had asked the Cambridge administration (on Oct. 6) whether the diploma was authentic but hadn't gotten an answer. But I finally did get an answer, and here's what the Cambridge people reported that "The attached certificate has not been issued by the University of Cambridge." They specifically noted:

College—There is a spelling discrepancy with the name Caius

Date of Award—29 June 2017—The General Admission ceremony held on this date was for the conferment of Undergraduate and Master of Law degrees only, it would not have been possible to be awarded a Doctorate degree on the given date.

Biochemistry—University degree certificates do not state the subject of study/research undertaken for the degree

They also informed me that Adams had studied for a Ph.D. and submitted a thesis, but didn't complete the expected corrections, and thus never received the Ph.D. (Note that some press accounts that discussed Adams' claims about the Letby case stated that "She has a PhD in biochemistry from Cambridge University, according to her online LinkedIn profile." Her petition in the California case, which she filed on her own behalf, also refers to her as "Dr. Adams.")

The response: When I received the response from Cambridge, I naturally asked Adams for her position on the matter. She didn't respond to me substantively, but she did e-mail Cambridge, cc'ing me, so I thought I'd pass it along as her response:

I received the correspondence below from an individual cyber stalker, by the name Eugene Volokh, who is working with numerous individuals, who are listed in this email, to harass and stalk me online.

The individual in question states that he contacted the University of Cambridge, and that they supplied the information below, which if true would appear to be a flagrant violation of GDPR. As for the content of the information, I cannot confirm its validity as I have not received any such correspondence, despite the claims this information concerns my personal data.

Please confirm with me directly, and I will provide further identifying information, to validate my identity. I am copying in the individuals engaged in this campaign of harassment and stalking such that it is clear that the University has been contacted as it concerns claims of a GDPR breach.

Owing to the ongoing cyberstalking and harassment campaign by Mr Volokh and his associates I politely request that the University only replies to me directly. Mr Volokh is stating he will be publishing claims that he derived the information surround my private information directly from the University of Cambridge. I believe his source is likely to be an individual of the name Richard Gill, as he too has been preoccupied with this stalking campaign.

Further note, I am quite certain this ongoing campaign of harassment is due solely to racial animus, as these individuals are not seeking to employ me, nor have I sought any employment opportunity from them, and I have repeatedly requested that they leave me alone. They appear to want to convince numerous individuals that I have no legitimate scientific expertise!! This is of course a racial trope, and it will not surprise that these individuals are all elder white men. Further, Mr Volokh is based in the United States, and he holds no UK citizenship, nor relationship with the University of Cambridge, he is merely attempting to maintain a smear campaign against me. He does have a history of pursuing and stalking ethnic minority females, as in one case he stalked a woman and exposed the pseudonym she used in legal filings.

Just to be clear:

I assume that the Cambridge administration, which responded to my query, is complying with English law on the subject. (I can't speak about that with confidence, not being an expert on the English law of educational records.) In any event, even if they shouldn't have responded to my question (and I have no reason to think that they shouldn't have), that doesn't seem to go to the underlying factual question related to Ms. Adams' credentials. None of this information comes from any Richard Gill; indeed, to my recollection I have never communicated with any Richard Gill on this subject. I an entirely unconcerned with Ms. Adams' race, sex, or any other identity attribute. As readers of this blog know, I have written about many overbroad injunctions that restrict speech, brought by a vast range of plaintiffs (some of those posts related to some of the cases discussed in this article). As to the allegation of my supposedly having "stalked a woman and exposed the pseudonym she used in legal filings," that presumably refers to Luo v. Volokh ; you can read that California Court of Appeal opinion yourself and see what the Justices thought of the claims that I stalked or harassed Ms. Luo. The only "other individuals" that I could see "listed" in Ms. Adams' e-mail (besides her own lawyers) as supposedly involved in trying to "harass and stalk" her were Ms. Gulley's lawyers, who were included in the cc line. I can't speak to how much "legitimate scientific expertise" Ms. Adams possesses (and I think none of my posts have sought to opine on that). I am, however, skeptical that she possesses a Ph.D.

A broader perspective: It also seems to me that this situation helps illustrate the dangers of courts blithely accepting requests for harassment restraining orders that restrict public speech. The requests are often presented to the court without a response by the defendant (or, if there is a response, the defendant often doesn't have a lawyer at the time). There is often little opportunity for the court to meaningfully vet the plaintiff's factual assertions, or even to determine whether the court has personal jurisdiction over the defendant.

Yet the orders, though temporary, may be extended for months. And while here the Foundation for Individual Rights and Expression successfully interceded pro bono on the defendant's behalf, the result might have been quite different if the defendant hadn't gotten a lawyer: The injunction might well have been extended for five or more years.

Now add to that the tendency to label public criticism "harassment" and "stalking." That is evident in Ms. Adams' e-mail to Cambridge. (Recall that my interaction with Ms. Adams has consisted of writing three posts stemming from Ms. Adams' litigation against Ms. Gulley, see here, here, and here, and talking or corresponding to her with regard to those posts—much the same thing that a newspaper reporter or columnist might do in writing articles about a case.)

But it's not just some litigants' views; some judges seem to fall into it as well. Consider the court's decision to initially grant the order against Ms. Gulley, likewise based largely on Gulley's public posts criticizing Adams, seems to reflect something of the same attitude on the court's part. See, also, e.g., Curcio v. Pels, and many of the cases discussed in my Overbroad Injunctions Against Speech article.

So there's a problem here, I think, going beyond just the possible inaccuracies in claims about Ms. Adams' diploma. I hope publicizing such cases may lead more groups besides FIRE step up to protect defendants' rights in such cases, and may lead courts to be more careful in such cases—to pay more attention to the First Amendment, to personal jurisdiction over the defendants, and to the need for accurate factfinding.

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